French Surveillance Law Compared to US Surveillance Law

Last Thursday, France’s constitutional court—le Conseil constitutionnel—issued a ruling upholding most of that country’s controversial new surveillance law, enacted in the wake of the Charlie Hebdo terrorist attacks. Francophones can read the untranslated decision here.

The legislation grants the French government sweeping new powers to monitor suspected terrorists. Among other things, the law authorizes warrantless wiretaps; officials need not obtain a court order before conducting electronic surveillance but rather must receive permission from a special administrative body. The law also requires telecommunications carriers and internet service providers to install “black boxes” on their networks, which the government can use to collect and analyze users’ communications metadata. The court’s largely favorable ruling means the law will now go into effect.

The Paris bar association—l’Ordre des avocats de Paris— asked me to prepare for the court a basic analysis comparing the new French legislation to American surveillance laws. The short version: U.S. law generally requires investigators to obtain court orders before engaging in electronic surveillance, and the government’s minimization procedures offer some modest protections for attorney-client communications, both of which safeguards are lacking in France’s new law. The court obviously wasn’t persuaded, but interested readers can find the analysis here.

  

About the Author(s)

Nathan Sales

Associate Professor of Law at Syracuse University